National Federation of Federal Employees, Local 1945 and U.S. Department of the Interior, Bureau of Land Management (Authority decision, February 12, 1987)

Final FLRA decision. The Authority dismisses a negotiability petition concerning shift structure. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Bureau of Land Management planned to replace two shifts in its Denver Key Entry Section with one shift. NFFE Local 1945 proposed keeping the early shift and moving the late shift to the agency's new hours. The Authority found that the proposal would determine the number of employees on a particular shift, a matter the agency could choose whether to bargain over. The agency declined to bargain. The Authority also rejected the union's claim that the proposal was an appropriate arrangement because it would undo the agency's decision to operate one shift. It dismissed the union's petition.

Decision snapshot

• Authority: Shift staffing under 5 U.S.C. § 7106(b)(1) and arrangements under § 7106(b)(3).
• Outcome: Petition dismissed; two shift proposal outside duty to bargain.
• Key point: A proposal requiring an agency to keep a shift it decided to abolish is negotiable only at the agency's election.

Full text (FLRA public release)

[ v25 p675 ]

25:0675(55)NG

The decision of the Authority follows:

25 FLRA No. 55

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1945
Union

and

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
Agency

CASE NO. O-NG-1257

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of the following proposal.

II. Proposal

1. The hours for the early shift would remain the same.

2. The hours for the late shift would become 0745-1615.

A. Background and Positions of the Parties

The Key Entry Section of the Agency's Denver Service Center formerly operated on a two shift schedule; one shift from 6:00 a.m. to 2:30 p.m. and the second shift from 9:30 a.m. to 6:00 p.m. The Agency decided to abolish the two shifts and move all employees to a single shift from 7:45 a.m. to 4:15 p.m. According to the Agency, the new shift schedule would: reduce turnover; increase operating efficiency; permit one position to be abolished; and result in only minimal disruption of employees. See Agency Statement of Position at 3rd page.

The Agency contends that a provision in the parties' current collective bargaining agreement precludes bargaining on the disputed proposal and, therefore, it has no duty to bargain. The Agency further asserts that this proposal interferes with management's rights under section 7106(a)(2)(A) and (B) to assign and direct employees and to assign work and with management's rights under section 7106(b)(1) to determine the numbers, types and grades of employees or positions assigned to a tour of duty and the methods and means of performing work.

The Union did not file a Reply Brief in this case but the record indicates that the Union considered its proposal to be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See Attachment 4 to the Union's Petition for Review.

B. Analysis and Conclusion

1. Duty to Bargain

Wnen a union files a negotiability appeal under section 7105(a)(2)(E) of the Statute, section 7117(c) entitles it to a decision on the negotiability issues in the appeal. The record in this case fails to provide a basis for substantiating the Agency's assertion that the parties' current collective bargaining agreement precludes negotiations on the proposal. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of the case, such issues should be raised in other proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n. 6 (1984). Hence, the Agency's contention that, under the circumstances, it has no duty to bargain on the disputed proposal is not relevant in the context of a negotiability dispute and will not be addressed further.

2. Management's Rights

This proposal expressly concerns the Agency's shift structure and thus does not involve the assignment of employees to positions in the Agency or the assignment of work to employees under section 7106(a)(2)(A) and (B). See Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 (1984) (Proposal 1).

Further, the Agency has not established that this proposal in any way interferes with its right to direct employees under section 7106(a)(2)(A) of the Statute. See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 at 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982) in which the Authority determined that the phrase "to direct . . . employees in the agency" means "to supervise and guide them in the performance of their duties on the job."

Similarily, the Agency has not established in what manner this proposal interferes with the method it would use to perform its work, that is, the way in which the Key Entry Section processes various payroll and financial data for the Agency. See American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441 (1981) (flexible work schedule not a "method" of performing work). Nor does the proposal concern the means, that is, the "tools," "devices," or "instrumentalities" by which the Agency will do its work. See American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshalls Service Locals and Department of Justice, U.S. Marshalls Service, 4 FLRA 384 (1980) (firearms held to be a "means" of performing work).

In agreement with the Agency, however, we find that this proposal involves the numbers, types, and grades of employees or positions assigned to a tour of duty within the meaning of section 7106(b)(1). Specifically, this proposal is to the same effect as the proposal found nonnegotiable in National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 16 FLRA 995 (1984). The agency in that case also sought to replace a two shift operation with one shift while the union proposed retaining the two shift schedule. The Authority determined that the union's proposal directly related to the numbers, types, and grades assigned to a tour of duty within the meaning of section 7106(b)(1) because the proposal specifically identified the number of employees who would remain on the second shift. Further, the Authority distinguished this determination from its holding in National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927, 928-9 (1978) where a proposal requiring management to maintain existing starting times of shifts was found to be negotiable. The Authority stated that the proposal in Kansas City Service Center contemplated only "a relatively minor adjustment" (30 minutes) to the starting times of employees already assigned to an existing tour of duty and did not explicitly relate to the matters enumerated in section 7106(b)(1). Based on U.S. Naval Observatory, we conclude that the proposal in this case directly concerns matters within the scope of section 7106(b)(1) because it also determines the specific number of employees assigned to a particular shift. Hence, this proposal is likewise distinguished from the proposal found negotiable in Kansas City Service Center. Since this proposal is negotiable only at the Agency's election and the Agency has declined to bargain on it, this proposal is not within the duty to bargain.

3. Appropriate Arrangement

We turn now to the Union's claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In this respect, the Union's proposal requires the Agency to reverse its decision to operate only one shift. In so doing, this proposal, as we concluded above, interferes with management's right under section 7106(b)(1). Clearly, a proposal which conpletely reverses the substantive effect of a management decision under section 7106 does not constitute an appropriate arrangement under section 7106(b)(3). American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983). Since the proposal negates the exercise of management's right it is not necessary to balance the factors discussed in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986).

III. Order

The petition for review is dismissed.

Issued, Washington, D.C., February 12, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean Mckee, Member FEDERAL LABOR RELATIONS AUTHORITY